Florida Gov. Jeb Bush and fellow Republicans in the state legislature are working on several fronts to respond to a recent court decision that struck down a statewide voucher program.
In one effort, the GOP-controlled legislature is moving ahead with a measure that would allow most of the students who receive the vouchers to stay in private schools with money from a separate tuition-aid program supported with corporate tax credits.
Lawmakers are also working on legislation that would ask Florida voters to amend the Florida Constitution to permit private school vouchers in the state.
“There are a lot of people here that are absolutely committed to moving forward on choice in education, no turning back,” said Rep. Dennis Baxley, a Republican who chairs the education council in the Florida House.
But while voucher advocates are confident that those efforts will succeed in the House of Representatives, the prospects in the Senate are still considered up in the air.
First, the Senate appears to be showing less enthusiasm for the plan to put a constitutional amendment on the ballot, which would require a three-fifths majority in both chambers. Also, unrelated infighting among Senate Republicans has complicated efforts to pass legislation.
The legislative push responds to the Florida Supreme Court’s ruling in January declaring that the state’s support for the Opportunity Scholarship program must cease at the end of this school year.
The program provides roughly $4,350 per child in tuition aid to more than 700 students from the state’s lowest-performing schools, allowing them to attend secular and religious private schools. Gov. Bush says he wants the students in the program to be able to stay at their chosen private schools.
The House on March 23 approved a bill that would permit most Opportunity Scholarship students to participate next fall in the Corporate Tax Credit Scholarship Program, which provides privately funded vouchers to students from low-income families. The bill passed 95-25, with 10 Democrats joining all Republicans in backing the measure.
Legislative action tied to the constitutional amendment has also begun.
A Senate measure that would place a voucher amendment on the November ballot cleared its first hurdle last week, when it was approved by the chamber’s judiciary committee on a party-line vote of 5-3.
And two House panels have approved, also by party-line votes, a separate measure that would, in effect, prevent state courts from using some of the key legal reasoning they relied upon in the recent high court voucher decision.
In his March 7 State of the State Address, Mr. Bush urged legislators to “protect the moral imperative of school choice.”
“By trying to go [with] vouchers, trying to go private, they’re just ignoring what’s in the constitution,” Mark Pudlow, a spokesman for the Florida Education Association, said of the governor and lawmakers who back such measures. “Their solution is not to follow the constitution, but to change it to fit their whims.”
The Florida Supreme Court in January ruled in John Ellis “Jeb” Bush v. Ruth D. Holmes that the Opportunity Scholarship program was unconstitutional. Chief Justice Barbara J. Pariente wrote in the majority opinion that the 6-year-old voucher program “diverts public dollars into separate, private systems … parallel to and in competition with the free public schools.” (“Fla. Court: Vouchers Unconstitutional,” Jan. 11, 2006.)
The high court emphasized the need for “uniformity” in publicly funded schools under the state constitution.
The plaintiffs in the case, including parents, educators, and others, had challenged the program with the backing of national advocacy groups and the FEA, a merged affiliate of the National Education Association and the American Federation of Teachers.
Uphill Battle
Passing a constitutional amendment to trump the court’s decision would be no easy task. While it’s a safe bet the House will endorse the effort, the Senate appears less hospitable. Even though Republicans control that chamber, they generally are not as apt to go along with Gov. Bush’s plans. In addition, analysts note, the Senate has been distracted by a tussle over the chamber’s leadership that has complicated some legislative efforts.
Under the Senate judiciary committee’s plan, which the committee chairman said was drafted by the governor’s office, the ballot measure would say in part: “Students in prekindergarten through college who have disabilities, are economically disadvantaged, or whose parents request alternatives to traditional public education programs may participate, as provided by law, in education programs that include nonpublic schools.”
It says the legislature may pay for such programs “without regard to the religious nature” of participants or providers.
Rep. Baxter says that such a measure would clearly establish the legal validity of the state’s voucher programs, and allow the legislature to reinstate the Opportunity Scholarships and devise still more initiatives to increase school choice.
“We’ve only begun to use school choice options,” he said.
He asserts that there’s no doubt his chamber can muster the three-fifths vote required to pass the measure. “Any problems we have will be in the Senate,” he said.
While the House is expected to take up a companion constitutional-amendment measure, it’s also pursuing another approach.
This measure, which has been approved by two House committees, would bar Florida courts in most cases from using expressio unis, the legal concept that means including or expressing one thing implies the exclusion of another. In Bush v. Holmes, the justices cited that concept as part of their reasoning to strike down the voucher program.
New Testing Requirements
Ronald G. Meyer, a Tallahassee lawyer who represented the plaintiffs, said no plans are set on whether to challenge the state’s other voucher programs, such as the corporate-tax-credit scholarships and the McKay Scholarships for students with disabilities, which together serve some 30,000 students.
“We’ve made a conscious decision to see what the legislative response to [the ruling] is,” he said.
He suggested that how far legislators go in imposing accountability demands on schools taking part in voucher programs could play a factor.
“If the McKay program were to be tightened up, and we could be certain the children who are taking disability vouchers are in fact disabled and not able to be served [in public schools], … that’s a program that we would probably not seek to challenge,” Mr. Meyer said.
The bill passed by the House on March 23 contains a range of new accountability demands for both the McKay Scholarship and corporate tax-credit programs. For instance, participating private schools would have to ensure fingerprinting and background checks of teachers and other adults. Also, the schools would have to meet new fiscal accountability requirements.
In addition, the measure revises the definition of a student eligible for McKay scholarships and related eligibility requirements for students and schools. Also, it would for the first time impose mandatory testing on students in the corporate tax-credit program, which serves about 14,000 students.
John F. Kirtley, a school choice activist in Florida, welcomed the new accountability measures, though critics say the House measure doesn’t go far enough.
“That’s a very, very crucial piece of legislation.” he said.
